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March 6, 1997

LEAH M. HAYES, Plaintiff,
JOHN E. SWEENEY, individually, and in his capacity as Commissioner, New York State Department of Labor, and FREDDA PERITZ, individually, and in her capacity as Director, Community Services Division, New York State Department of Labor, Defendants.

The opinion of the court was delivered by: HECKMAN


 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants have filed a motion pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to partially dismiss the complaint (Item 5). For the reasons that follow, it is recommended that defendant's motion be granted in part and denied in part.


 When considering a motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), this court accepts as true the facts that are alleged in the complaint and draws all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Plaintiff's allegations are as follows.

 Plaintiff is an African-American female who received a bachelor's degree from Hunter College and a master's degree from New York University (PP 14, 21). Sometime prior to March 1987, plaintiff received a competitive civil service appointment with the Department of Labor (DOL) as an Employment Security Placement Trainee (PP 13, 14). In March 1987, plaintiff was promoted to a permanent civil service position as an Employment Security Superintendent. Her promotion to this grade M-4 position was based on a competitive examination (P 14). On February 12, 1990, plaintiff was promoted to Community Services Regional Director, a grade M-5 position (P 15).

 Plaintiff was assigned to manage the DOL's Western Region office, located in Buffalo, New York, until April 25, 1996 (PP 8, 16). During that time she was responsible for ten Community Service Centers located in five Western New York counties (P 16). In addition to her regional director duties, plaintiff also directly managed the Buffalo Downtown Community Service Center's staff of more than 50 persons from July 1995 until April 25, 1996 (P 36). Plaintiff was the only African-American regional director in the DOL.

 While plaintiff's employment and promotions were gained through the competitive civil service process rather than by political appointment, plaintiff actively supported the Democratic party, including then-governor Mario Cuomo (PP 18, 19). During the 1994 state election campaign, plaintiff solicited eight DOL employees for work at a telephone bank where they made calls encouraging democratic party members to vote for the party ticket. All eight employees had volunteered for the telephone bank and none ever complained. However, plaintiff was later reprimanded for improperly soliciting DOL employees to engage in political activities and a "Memorandum of Understanding" with respect to the incident was placed in her personnel file (P 18).

 Governor Cuomo lost the 1994 gubernatorial election to Republican challenger, George Pataki. After his election, Governor Pataki appointed defendant John E. Sweeney to the position of Commissioner of the DOL. Defendant Sweeney has administrative and supervisory authority over all DOL operations (P 10).

 Defendant Fredda Peritz was appointed to the position of Director of the Community Services Division by defendant Sweeney. As Director, Defendant Peritz has supervisory authority over the statewide network of Community Service Centers and is the immediate supervisor of the Regional Directors assigned to manage them (P 11).

 All of the African-American officials in the DOL who ranked higher than plaintiff at that time held the civil service exempt positions of deputy commissioner or program director. By April 1996, all higher-ranking African-Americans had been terminated by defendant Sweeney and plaintiff became the senior African-American official in the DOL statewide. Due to other terminations engineered by defendant Sweeney, no other African Americans besides plaintiff now hold a position in the DOL higher than a grade M-3 (P 21).

 In late 1995, the Pataki administration began to eliminate regional directors throughout state government who had not supported Governor Pataki in the 1994 election. Regional directors in other state agencies who held noncompetitive positions were terminated outright. In the DOL, however, regional directors held their positions by permanent civil service appointment and could not be removed except for cause (P 22). Both defendants knew that plaintiff had worked to re-elect Mario Cuomo (P 20). Plaintiff claims that the following actions were taken against her over a three-month period, in part because of her party affiliation and associations and despite the fact that she did not hold a policymaking position (PP 23, 58, 59).

 In April 1996, plaintiff received a phone call from defendant Peritz who told plaintiff she was encouraging all DOL Regional Directors age 50 and above to consider an early retirement incentive program in case a future reorganization occurred. Plaintiff was then 51 years old. When plaintiff indicated she would probably not file the prerequisite statement of interest, defendant Peritz urged her to consider the decision carefully even though there were no definite plans to change the current regional organization (P 25).

 On April 24, 1996, plaintiff was attending a series of work-related meetings in Albany, New York, when defendant Peritz requested that they meet privately. After stating that she had "smelled alcohol" on plaintiff's breath on some prior unspecified occasion, defendant Peritz handed plaintiff information about the state's Employee Assistance Program (EAP), a confidential program for employees who have a problem with drugs or alcohol (P 25). Defendant Peritz then instructed plaintiff to contact one of the program coordinators about what she assumed to be a drinking problem and placed plaintiff on administrative leave with pay, effective the following workday (P 26). Plaintiff vigorously denied having any problem with excessive drinking or substance abuse and requested that she be allowed to comply with defendant's directive without suspension from her duties. Defendant Peritz declined the request and told plaintiff she would remain on suspension until EAP confirmed that she could return to work (P 26).

 Defendant Peritz cited plaintiff's recent pattern of arriving late to work and leaving early as evidence of alcohol abuse. Plaintiff reminded defendant about their prior discussions and written memoranda regarding her father's recent illness and her involvement in the daily care of her 89 year-old mother. Plaintiff always charged personal leave accruals for her brief absences (P 27).

 Defendant Peritz also cited an alleged deterioration in plaintiff's job performance, but refused to offer any specifics (P 27). According to various statistical measures employed by the DOL, the Western Region office ranked in the top one-half of all regional offices for the months of January through April 1996 (P 16). On a later date, when plaintiff again asked for clarification regarding problems with her job performance, defendant Peritz made vague references to "unclear" personnel recommendations (P 36).

 Later that same day, James Abdou, the DOL's Director of Employee Relations, confirmed plaintiff's suspension and told plaintiff that should she refuse to comply with the EAP mandate, she could be subject to formal charges and disciplinary action. Defendant Peritz denied that these actions were based on a political agenda and claimed her only concern was for plaintiff's health and recovery (P 28).

 Plaintiff arranged to meet with the Buffalo EAP Coordinator on the following day. She then called her office and informed two staff members that she would be absent for a few days. When plaintiff reported these calls to defendant Peritz, she was told not to contact DOL staff or go to her office (P 28).

 Though shocked and distraught over defendant Peritz's allegations, plaintiff complied with the EAP mandate, believing that she would face misconduct charges otherwise (P 29). Between April 30 and May 13, 1996, plaintiff was referred to BryLin Hospital, a private psychiatric treatment facility in Buffalo. She was required to engage in two intake assessment sessions at the Addiction Treatment Center, two feelings workgroup sessions and one alcohol recovery workgroup session, two counseling sessions with a clinical case worker, daily breathalyzer testing, and blood sampling and testing (P 29).

 As early as May 8, 1996, the Buffalo EAP coordinator informed defendant Peritz that BryLin was prepared to certify plaintiff as fully able to perform her duties. However, defendant Peritz would not allow plaintiff to return to work until defendants reviewed her blood test results (P 30).

 Defendant Peritz and James Abdou met with plaintiff on May 10, 1996 for the purpose of clarifying her status. At that time, they assured plaintiff that her blood test results would be analyzed by a competent medical expert. Plaintiff stated that she had complied with defendant Peritz's mandate with the expectation that defendants would accept the EAP and BryLin recommendations regarding her work readiness (P 31). In response, defendant Peritz accused plaintiff of lying to BryLin personnel (P 32).

 Upon plaintiff's further inquiry, defendant Peritz told plaintiff she would not be allowed to return to her job regardless of the blood test results. James Abdou stated that since their initial meeting of April 24th, defendants had received undeniable information that would result in the filing of Article 75 charges against plaintiff (P 33). He added that plaintiff held a high-level policymaking position and could no longer be allowed to function without close supervision. Therefore, defendants decided to assign her to another geographic area where she would be closely monitored (P 34).

 Defendant Peritz told plaintiff she would be assigned to the Finger Lakes Region and would report to the regional director for that area. Plaintiff expressed her fear of unfair treatment because of a history of animosity between that regional director and herself (P 35).

 Several hours after meeting with plaintiff on May 10, 1996, defendant Peritz directed a part-time EAP Coordinator to meet with the Western Region office staff to report plaintiff's suspension and removal. At least four staff members were present at the meeting, each of whom had been interviewed previously about plaintiff's use of alcohol (P 37).

 At approximately 1:00 p.m. on the same day, defendant Peritz and James Abdou met with the Western Region's Community Service Center managers at the Western Region office in Buffalo. Defendant Peritz announced that plaintiff was on leave and that she would be reassigned upon her return. In response to a question, defendant Peritz stated that plaintiff was dealing with her issues and that "it's awkward because I can't talk about it" (P 38).

 On May 14, 1996, defendant Peritz telephoned plaintiff to confirm defendants' decision to reassign her to the Finger Lakes Region. Plaintiff was to be assigned to a region-wide project requiring extensive travel, despite defendants' knowledge that plaintiff's 81 year-old father was dependent on her for daily care (P 40). The new assignment was conditioned upon plaintiff's release from BryLin supervision (P 41).

 On May 20, 1996 or immediately thereafter, defendants received from BryLin Hospital a letter summarizing its five-part evaluation of plaintiff. The letter concluded with the determination that treatment was not recommended at that time (P 42). No later than May 20, 1996, defendants also received plaintiff's blood analysis from BryLin, which demonstrated the absence of any alcohol or drug abuse problems (P 43).

 On May 29, 1996, plaintiff and her Albany attorney met with James Abdou in an effort to avoid the Article 75 charges threatened by defendants. Mr. Abdou questioned plaintiff about her frequent lateness in 1996, when she often arrived in the office at approximately 9:30 a.m. Plaintiff again explained the medical and domestic needs of her elderly parents and noted that she had notified defendant Peritz of the situation verbally and in writing. She also noted that she had charged leave accruals for any late arrivals (P 45).

 Despite plaintiff's documentation of absences and the determination by BryLin and EAP that she did not have an alcohol problem, defendants issued Article 75 misconduct charges against her on June 3, 1996 (P 46). Charge I alleged that from April 1995 to April 1996, plaintiff repeatedly presented herself at work after having consumed alcohol and that she consumed alcohol in the workplace. Defendants have not provided any specific incidents or specific evidence to support the allegations (P 47).

 Shortly thereafter, on June 13, 1996, defendants restructured the DOL regional office network, reducing the number of regions from nine to six. The Western Region was consolidated with the Finger Lakes Region under the Finger Lakes Regional Director. Two regions, each comparable in size to the former Western Region, were retained intact. Because some regional directors opted for retirement, no incumbent remained unassigned to a regional director position except plaintiff (P 51). Defendants have failed to consider plaintiff for a vacant regional director position in Long Island, despite the fact that she holds preferred appointment rights due to her permanent civil service classification (P 52). plaintiff for a vacant regional director position in Long Island, despite the fact that she holds preferred appointment rights due to her permanent civil service classification (P 52).

 In sum, plaintiff alleges that defendants sought to force her early retirement or resignation and ultimately eliminated her job. She states that these actions were taken in retribution for her political affiliation and associations, and were also motivated by racial discrimination. As a result of defendants' conduct, plaintiff claims that she has been deprived of employment and career opportunities, has lost self-esteem and personal dignity, and has suffered continuing damages from humiliation and mental anguish.

 On July 31, 1996, plaintiff commenced this action claiming: (1) that defendants violated the Civil Rights Act of 1871, 42 U.S.C. § 1983, when they deprived her of her first and fourteenth amendment rights to exercise her freedom of political affiliation and association without interference with her employment opportunities, (2) that defendants intentionally discriminated against her in her employment on the basis of her race in violation of 42 U.S.C. § 1981, (3) that defendants conspired to deprive her of her first and fourteenth amendment rights in violation of 42 U.S.C. § 1985(3), and (4) that defendants made defamatory statements with the intent to injure her good name, character and integrity, professional reputation and career prospects. Plaintiff is seeking declaratory, injunctive, and monetary relief.

 On September 30, 1996, defendants filed a motion to partially dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants are seeking dismissal of (1) the § 1983 claim against both defendants in their individual capacities, (2) the § 1981 claim against both defendants in their individual and official capacities, (3) the § 1985(3) claim against both defendants in their individual and official capacities, and (4) the state law defamation claim against both defendants in their individual and official capacities.



 Plaintiff alleges that defendants violated her first and fourteenth amendment rights when they initiated a series of adverse employment actions against her in retaliation for her political affiliation and associations. Plaintiff is seeking monetary damages from the individually-named defendants, Sweeney and Peritz.

 Defendant Sweeney argues that dismissal of the § 1983 claim against him in his individual capacity is appropriate because the complaint fails to state that he was personally involved in the alleged violations. In addition, defendants Sweeney and Peritz seek dismissal of the § 1983 claim against them in their individual capacities on the ground that they are protected by qualified immunity. Their arguments are discussed in turn.

 A. Failure to Allege Personal Involvement.

 It is well-settled that defendant's personal involvement in the alleged constitutional violations is a prerequisite to an award of monetary damages under § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Where a defendant is employed in a supervisory capacity, personal involvement can include: (1) direct participation in the alleged violation, (2) failure to remedy the wrong after learning of it, (3) creation or maintenance of a policy or custom under which unconstitutional practices occurred, (4) gross negligence in supervising subordinates who committed the unconstitutional acts, and (5) exhibiting deliberate indifference by failing to act on information indicating that constitutional violations were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). A § 1983 claim is properly dismissed where the plaintiff alleges nothing more than that defendant was in charge of the agency. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987).

 Defendant Sweeney does not dispute that, as Commissioner of the Department of Labor, he exercises administrative and supervisory authority over all DOL operations. He does argue, however, that the complaint fails to allege his "personal involvement" in employment actions taken against plaintiff.

 In her complaint, plaintiff alleges that defendant Sweeney terminated some DOL employees and engineered the termination of others who held positions at grade M-4 and higher (P 21). Thus it is alleged that Sweeney has been directly involved in DOL personnel actions affecting positions at plaintiff's level of employment. Plaintiff further alleges that in 1995, the Pataki administration began to systematically eliminate officials at the regional director level throughout state government who had not supported Governor Pataki in the 1994 election (P 22). While defendant Sweeney is not specifically named with respect to this statewide action, the reasonable inference is that, as Commissioner of a state agency, he was at least aware of this action and may have been responsible for its implementation at the DOL. Plaintiff goes on to specify the particular employment actions taken against her in an effort to force her early retirement or resignation (PP 23-52). In particular, she claims that defendants decided to transfer her (PP 34, 41), defendants issued Article 75 misconduct charges against her (P 46), defendants restructured the DOL regional office network and eliminated her position (P 51), and defendants failed to consider her for a vacant Regional Director position elsewhere (P 52).

 Accordingly, defendant Sweeney's motion to dismiss the claim against him in his individual capacity on the ground that plaintiff failed to allege his ...

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